In this Article, Dr. Arnold S. Relman, the Editor of The New England Journal of Medicine, takes issue with the 1977 Saikewicz decision of the Massachusetts Supreme Judicial Court, which addressed the question of whether chemotherapy should be provided to a severely retarded 67-year-old man who had developed acute leukemia. Dr. Relman interprets Saikewicz as requiring that medical treatment decisions involving the life or death of incompetent patients must receive judicial resolution instead of resolution by the patient's family and physicians. This rule, he asserts, violates medical tradition, and its application will result in serious problems, such as the unnecessary prolongation of the suffering of many seriously ill persons. Dr. Relman proposes, as an alternative to the Saikewicz approach, that in such cases judicial resolution should occur only when there is disagreement, concerning treatment, among next of kin, or between next of kin and attending physicians, or when there is a complaint of injury or of wrongdoing. In all other situations, resolution solely by next of kin and attending physicians should be sufficient. Adequate protection of the interests of the incompetent patient could be achieved by a requirement that the physician in charge document in the medical record that the treatment decision received the concurrence of the family and advance approval of a group of the physician's professional colleagues who have no vested interest in the outcome of the decision.

In this Article, Professor Baron challenges the position taken recently by Dr. Arnold Relman in this journal that the 1977 Saikewicz decision of the Supreme Judicial Court of Massachusetts was incorrect in calling for routine judicial resolution of decisions whether to provide life-prolonging treatment to terminally ill incompetent patients. First, Professor Baron argues that Dr. Relman's position that doctors should make such decisions is based upon an outmoded, paternalistic view of the doctorpatient relationship. Second, he points out the importance of guaranteeing to such decisions the special qualities of process which characterize decision making by courts and which are not present when such decisions are made by doctors. Finally, he argues that Dr. Relman has overestimated the social costs of bringing Saikewicz-type cases before the courts and that those costs which are inevitable are more than offset by the qualities of process that the court system can offer in such matters.

This Article examines the key National Labor Relations Board and federal court interpretations of the much-heralded 1974 Health Care Institution Amendments to the National Labor Relations Act. It analyzes NLRB decisions that have resulted in a proliferation of separate employee bargaining units at health care facilities, and that have applied the strike notice provisions of the NLRA to labor disputes involving building trade employees engaged in construction at operating health care facilities. In addition, the Article examines the Board’s decision to decline jurisdiction over employee unions representing interns and residents, and summarizes both the special NLRB rules designed to apply to union solicitation of employees at health care facilities and the conflicting circuit court decisions that have modified the Board’s specialized solicitation rules.

The author focuses this Article upon the aspect of the Saikewicz decision which determines that the kind of “proxy consent” question involved in that case requires for its decision “the process of detached but passionate investigation and decision that forms the ideal on which the judicial branch of government was created.” This aspect of the decision has drawn much criticism from the medical community on the ground that it embroils what doctors believe to be a medical question in the adversarial processes of the court system. The author criticizes the decision from an entirely opposite perspective, arguing that the court's opinion fails in not laying down guidelines that would assure a truly adversary process in Saikewicz-type cases. He agrees with the Saikewicz court that our democratic institutional structure and societal commitment to individual liberty require that persons not competent to consent for themselves to acts of euthanasia be protected by a process of “detached but passionate investigation and decision.” However, he points out that this ideal of the court system was not realized in Saikewicz itself and is not likely to be realized in other cases without reform of some of the procedures currently being employed by the courts in “proxy consent” cases. Drawing on previous articles that he has written in related areas, he then proposes a set of guidelines that he believes not only will remove existing procedural deficiencies, but also may reform some aspects of the existing system that have drawn criticism from the medical community.

This Article examines the question of civil liability arising, both in tort and in contract, as a result of the “wrongful birth” of a child following an unsuccessful sterilization operation. After a general overview of the concept and background of wrongful birth, the Article deals with tort liability in a sterilization-wrongful-birth action, suggesting in particular that there are four stages in the sterilization process at which a physician's conduct may fall below the standard required by law, and discussing the effect of negligence at each of the four stages. The alternative claim for breach of warranty is then examined, with emphasis on the practical difficulties involved in establishing contractual liability in this type of case. Finally, the Article discusses public policy and assessment of damages issues involved in the wrongful birth action, and evaluates the merits of some of the arguments that have been advanced under these headings—particularly the “overriding benefit” theory—to defeat claims for wrongful birth.

In this Comment, the Massachusetts Rate Setting Commissioner takes issue with the criticism of health care cost-containment regulation that was expressed by Professor Clark C. Havighurst in a recent edition of the Journal, and argues that instead of abandoning regulation in favor of various “free market” alternatives recommended by Professor Havighurst, the nation should find ways to make regulation work more effectively in the public interest. The author challenges Professor Havighurst on the ground that he fails to recognize (1) that the free market model is inadequate for evaluating regulatory activity and (2) that regulation is essentially a political process, and therefore regulatory objectives cannot and should not be defined in economic terms alone. What is needed, suggests Mr. Weiner, is acceptance of the need for, and validity of, regulation, and an examination of how regulation can best achieve its economic and political objectives. The key challenge for policy makers in the health care regulatory field, he asserts, is the clarification and implementation of appropriate relationships (1) between health care regulation and health care rationing; (2) between health care regulation and health care planning; and (3) between health care regulation and health care competition.

One of the most perplexing problems in the medicolegal field concerns the criteria on which decisions not to treat terminally ill incompetent patients should be made. These decisions traditionally have been made by physicians in hospitals—sometimes with the assistance of the patient's family—on the basis of their perceptions of the patient's "best interests." Recently, two state supreme courts have ruled on this question. The New Jersey Supreme Court, in the Quinlan case, developed a medical prognosis criterion, and permitted the patient's guardian, family, and physicians to apply it with the concurrence of a hospital "ethics committee." The Massachusetts Supreme Judicial Court, in the Saikewicz case, adopted, on different facts, the test of "substituted judgment" to be applied by a probate court after an adjudicatory hearing. The two cases have been interpreted by many in the medical profession as representing conflicting viewpoints—one supportive of traditional medical decision making and the other distrustful of it.

It is the thesis of this Article that Quinlan and Saikewicz are in fundamental agreement and can be reconciled by the next state supreme court that rules on this question. Both courts enunciate a constitutional right to refuse life-sustaining treatment, based on the right to privacy. They agree that incompetents should be afforded the opportunity to exercise this right, and that certain state interests can overcome it. They agree also that physicians should be permitted to make medical judgments, and that societal judgments belong in the courts. The differences in how the opinions are perceived result from the interplay of several factors: the differences in the facts of the cases; the inarticulate use of the term "ethics committee" by the Quinlan court; the literal interpretation of the role of such a committee by the Saikewicz court; a desire for 100 percent immunity on the part of physicians and hospital administrators in Massachusetts; and advice from their counsel on how such immunity can be guaranteed.

It is the author's hope that this Article will help to dispel much of the misinformation surrounding these two cases, and to refocus the debate on how decisions should be made for the terminally ill incompetent patient on the real issues regarding criteria and the decisionmaking process that remain to be resolved.

The Medicine and Law Committee of the American Bar Association's Section of Insurance, Negligence and Compensation Law was established in 1973 to meet the growing needs arising from the interface between law and the medical and health sciences. Although joint work had been conducted by the ABA and the American Medical Association prior to 1973, the organization of the Committee marked the first major project of any Section of the ABA aimed specifically at identifying and understanding the effects of medicine and the health sciences upon the everyday practice of law. As such, it provides a common ground to hundreds of attorneys whose practices involve medicolegal issues, and offers them the opportunity to learn from each other, to keep abreast of recent developments, and to approach constructively many theoretical and practical problems.

In this Comment, the Massachusetts Commissioner of Public Health views the federal government’s 1976-77 Swine Flu Immunization Program, which was sharply criticized by Dr. Cyril Wecht in a recent Article in this journal, as a classic example of a public policy decision made under conditions of stress and uncertainty. Once the responsible government officials had made a public commitment to immunize the entire populace of the United States, he contends, they found it very difficult to reformulate the program in response to changing information concerning its relative costs and benefits. Dr. Fielding offers suggestions for avoiding in the future some of the problems that surrounded the Swine Flu Program and for preventing further erosion of public confidence in essential preventive medicine programs.

Founded in 1968, the American Society of Hospital Attorneys of the American Hospital Association is the country's oldest and largest association of attorneys specializing in hospital and health law. It is a measure of the rapid growth of this legal specialty that although the Society only recently held its Eleventh Annual Meeting, it has over 2100 active duespaying members on its rolls. The Board of Directors' continues to seek out as new members all attorneys who act as general or special counsel to hospitals or who have demonstrated substantial interest in the field of hospital law in some other capacity.